GEBE has to repay fuel clause charges on water bill to hotel

POSTED: 03/23/11 12:49 PM

Court rejects appeal against Westin ruling

St. Maarten – Utilities company GEBE had to repay the Westin Hotel fuel clause charges on its water bill going back to 2007. Yesterday GEBE lost its appeal against a February 22 court ruling that ordered it to immediately repay Westin around an amount of $168,455.38 plus a non-specified amount for fuel clause charges over the years 2007 and 2008. Based on the minimum consumption of 60,000 cubic meters of water a year – and a fuel clause charge of around 11 guilders this amounts to an additional 1,320,000 guilders, or almost $735,000.

Westin is currently calculating how much the damages are – the final amount could end up being anywhere between $1 million and $2 million.

The court also ordered GEBE to change the contract it signed with GEBE in 2009 in such a way that the utilities company cannot charge the Westin a fuel clause on its water bill for the duration of the five-year contract.

Mark Kortenoever, the attorney for GEBE declined to comment on the court ruling yesterday. The attorney for the Westin Hotel, Maarten Le Poole said in a brief reaction that it is not possible to go in cassation against the ruling at the Supreme Court and that the utilities company now will have to pay.

Briefly after the February court ruling, GEBE filed an appeal, asking the court to postpone its execution until there is a decision at the highest level.

Appeals court Judges Mrs. Sijmonsma, De Kort and De Haan considered the interests of both parties before arriving at their conclusion. The court examined whether the interest of the party that obtained the sentence weighs heavier than the sentenced party’s interest in maintaining the status quo until there is an irrevocable decision. The chances of success for the appealing party are not taken into consideration, the court pointed out.

The court accepted that the Westin has an interest in the immediate execution of the February ruling and rejected GEBE’s argument that, in case the decision is reversed later on, there are doubts whether Westin will be capable to return the money.

“GEBE has not made the restitution risk sufficiently concrete,” the court ruled. “GEBE did not submit a calculation of the amount it has to repay to Westin. It has therefore not been established that the risk of the impossibility to repay stands in the way of immediate execution of the ruling.”

The court points out that GEBE did not contest that the Westin is a large hotel. With this observation, the court put aside the following argument GEBE used in its attempt to get a stay of execution: “That the Westin operates a hotel does not mean anything and the people of St. Maarten and the many timeshare owners know this only too well if we look at the Pelican Resort.”

The appeals court also rejected GEBE’s argument that the Court in First Instance’s ruling is based on a miscarriage of justice.

This complaint from the utilities company refers to the demand Westin added to its law suit. Initially, the hotel sued GEBE because it had overcharged for the water, by using an 8-guilder ($4.44) per cubic meter rate, whereas the letter of comfort from the island territory had suggested that Westin would qualify for a rate of $3.05 per cubic meter. Later, Westin added the demand for repayment of fuel clause charges.

Contrary to what GEBE claimed the Appeals Court ruled that the Court in First Instance “did not make an apparent mistake” when it concluded that the demand for immediate execution of the ruling also applied to the fuel clause.

The court also does not find justification for staying the ruling’s execution in GEBE’s claim that “complying with the fuel clause conviction will create a certain precedent.”

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